ABSTRACT
There are many obvious reasons for malingering to be undetected at the initial evaluation. First, the amount of evidence of incompetency that needs to be demonstrated to result in a finding of “incompetent” is minimal. Generally, in light of the Supreme Court decision in Cooper v. Oklahoma (1996), most courts and jurisdictions have a preponderance standard, in which there simply needs to be more evidence that the defendant is incompetent than competent. Any deviations from this standard within a state are in the direction of protection for the defendant. Bobby Frank Cherry, ultimately convicted as one of the four Klansmen who bombed a church in Birmingham, Alabama, was initially found incompetent even though there was good evidence he was suppressing his true cognitive abilities and feigning memory problems. The Alabama competency standard at that time was “clear and convincing,” which means that the prosecution had to demonstrate by “clear and convincing” evidence that the defendant was competent. After a period of inpatient hospitalization, the evidence presented by the hospital staff that he was faking was considered to surpass that standard. He was found competent and sent to trial.
